commissioned specially to try. Nor does the replication question his legal right to the office itself, but simply denies the disqualification of the regular judge of the Fifth judicial circuit to adjudicate the cases mentioned in the writ, thus attempting, as it were, to divide the office, and to consider it as a distinct office depending upon a separate warrant in reference to each case, which the judge is commissioned specially to try and determine, contrary to the fact, as well as every principle of law and justice. This principle, if admitted to be true, might subject the officer to the vexation and expense of exhibiting his authority in every case pending for his adjudication, and a judgment in one case would be no bar to the demand made of him in another, nor could any judgment of ouster from office, or other legal judgment, that we are aware of, be pronounced against him in such case.

And therefore we are of the opinion that the legal remedy for the wrong, if any has been committed by the supposed unauthorized and illegal certification to the Governor, by the regular judge of the circuit court of Pulaski county, of the cases mentioned in the writ, has in this proceeding against the defendant been misconceived. And for this reason the demurrer to the replication must be sustained.85

PEOPLE ex rel. LONGRESS v. BOARD OF EDUCATION OF CITY OF QUINCY.

(Supreme Court of Illinois, 1882. 101 Ill. 308, 40 Am. Rep. 196.)

Mr. Chief Justice CRAIG delivered the opinion of the court.86 This was an information in the nature of a quo warranto, brought by the Attorney General, on the relation of John Longress, against the board of education of the city of Quincy, a corporation created by an act of the General Assembly approved February 20, 1861. Priv. Laws 1861, p. 252. The board of education is intrusted by law with the exclusive management and control of the public schools in the city of Quincy.

* * *

It is averred in the information that on the 31st day of July, 1878, before that time, and since, there was a large number, to wit, five hundred persons of African descent, commonly called "colored persons," between the ages of six and twenty-one years, who for all that time have been and are now bona fide residents of said city of Quincy, and in the several school districts thereof, and have been and are at all times, and are now, ready to furnish to the principal of the proper school satisfactory evidence that they have been vac

85 Quo warranto held not to be the proper remedy to test the validity of an ordinance. State v. Lyons, 31 Iowa, 432 (1871); State v. Newark, 57 Ohio St. 430, 49 N. E. 407 (1898).

86 Only a portion of the opinion of Craig, C. J., is printed.

cinated; and the said persons do now reside, and at all times heretofore have in good faith resided, in the different school districts of said city so established by the said the board of education of the city of Quincy, and are entitled to be admitted into the public schools of the districts in which they respectively reside, without being directly or indirectly excluded therefrom on account of their descent or color, yet the said the board of education of the city of Quincy, during all the time aforesaid, without warrant or authority of law, have adopted, maintained and enforced, for the management of the public schools of said city, and to exclude the said persons of African descent, commonly called "colored persons," from the said public schools in the districts in which they reside, on account of their descent and color, the following pretended rules and regulations for the government and management of the public schools of said city, that is to say: "That the colored schools of said city shall be composed of colored pupils who shall be of the prescribed age, and bona fide residents of said city; that no pupil of African descent shall be permitted to attend any of the public schools of the city other than the colored schools, and that all the colored pupils in said city shall attend a certain public school in said city, called the Lincoln School, and no other." All of which pretended rules and regulations for the government and management of said public schools in said city, the said the board of education of the said city of Quincy, without authority of law, do maintain and enforce, to the damage of the people of the state of Illinois, and against the peace and dignity of the

same.

The board of education filed five pleas to the information, to which the Attorney General interposed a demurrer, which the court carried back and sustained to the information, and this decision of the court is assigned for error.

Whether a proceeding in the nature of a quo warranto, instituted by the Attorney General, will lie in a case of this character at common law, is a question which it will not be necessary to determine. The object of the proceeding was to test the legality of the rules adopted by the board of education, and if the statute is broad enough to authorize the court to inquire into the action of the board in adopting and enforcing the rules which excluded children of color from the public schools, then the information was proper, and the court erred in sustaining the demurrer.

Section 1, c. 112, p. 787, Rev. St. 1874, provides "that in case any person shall usurp, intrude into, or unlawfully hold or execute any office or franchise, * * * or any corporation does or omits any act which amounts to a surrender, or forfeiture of its rights and privileges as a corporation, or exercises powers not conferred by law, * * the Attorney General, or state's attorney of the proper county, either of his own accord or at the instance of any individual relator, may present a petition to any court of record of competent

jurisdiction, or any judge thereof, in vacation, for leave to file an information in the nature of a quo warranto, * * * and if such court or judge shall be satisfied that there is probable ground for the proceeding, the court or judge may grant the petition," etc.

The board of education is a corporation created by law, clothed with the exercise of certain powers in relation to the public schools of Quincy. Now, if the board, in the discharge of its duties as a corporation, exercises powers not conferred by law, it is apparent that it will fall within the obvious meaning of the statute, unless the plain reading of the statute is to be disregarded. The very gist of the complaint here is that the board of education, a corporation, is exercising powers not conferred by law, unless it had the right to adopt and enforce the rules set out in the information. We are therefore clearly of opinion that, under the statute, the Attorney General had the right to file the information.

* * * 87

87 See, also, People v. Town of Thornton, 186 Ill. 162, 57 N. E. 841 (1900). In Illinois, formerly, quo warranto was held not to be the proper remedy to test the validity of the extension of the powers of a municipal corporation over new territory. People v. Whitcomb, 55 Ill. 172 (1870). At present. quo warranto is held to be the proper remedy for that purpose. Evans v. Lewis, 121 Ill. 478, 13 N. E. 246 (1887); Shanley v. People, 225 Ill. 579, 80 N. E. 277 (1907).

In Kansas, quo warranto was used to oust a municipal corporation from the illegal exercise of the power to grant licenses for the sale of intoxicating liquor. State v. Topeka, 30 Kan. 653, 2 Pac. 287 (1883); Id., 31 Kan. 452, 2 Pac. 593 (1884).

See, also, State v. City Council of Charleston, 1 Mill, Const. (S. C.) 36 (1817).

With regard to the burden of proof in quo warranto proceedings, see note to State v. Kupferle, 44 Mo. 154, 100 Am. Dec. 265, 268 (1869).

The following additional cases in this collection illustrate the application of proceedings in the nature of quo warranto: People ex rel. Lewis v. Waite, 70 Ill. 25 (1873); People ex rel. Demarest v. Fairchild, 67 N. Y. 334 (1876); People ex rel. Raster v. Healy, 230 Ill. 280, 82 N. E. 599, 15 L. R. A. (N. S.) 603 (1907); Dullam v. Willson, 53 Mich. 392, 19 N. W. 112, 51 Am. Rep. 128 (1884); Wilcox v. People, 90 Ill. 186 (1878); People ex rel. Gere v. Whitlock, 92 N. Y. 191 (1883); State ex rel. Meader v. Sullivan, 58 Ohio St. 504, 51 N. E. 48, 65 Am. St. Rep. 781 (1898).

FR.ADM.LAW-32

SECTION 60.-HABEAS CORPUS

Ex parte WATKINS.

(Supreme Court of the United States, 1830. 3 Pet. 193, 7 L. Ed. 650.) MARSHALL, C. J.88 This is a petition for a writ of habeas corpus to bring the body of Tobias Watkins before this court, for the purpose of inquiring into the legality of his confinement in jail. The petition states that he is detained in prison, by virtue of a judgment of the Circuit Court of the United States for the county of Washington, in the District of Columbia, rendered in a criminal prosecution carried on against him in that court. A copy of the indictment and judgment is annexed to the petition, and the motion is founded on the allegation that the indictment charges no offense for which the prisoner was punishable in that court, or of which that court could take cognizance, and consequently that the proceedings are coram non judice, and totally void.

This application is made to a court which has no jurisdiction in criminal cases (United States v. More, 3 Cranch, 169, 2 L. Ed. 397), which could not revise this judgment, could not reverse or affirm it, were the record brought up directly by writ of error. The power, however, to award writs of habeas corpus, is conferred expressly on this court by the fourteenth section of the judiciary act, and has been repeatedly exercised. No doubt exists respecting the power; the question is whether this be a case in which it ought to be exercised. The cause of imprisonment is shown as fully by the petitioner as it could appear on the return of the writ; consequently, the writ ought not to be awarded, if the court is satisfied that the prisoner would be remanded to prison.

No law of the United States prescribes the cases in which this great writ shall be issued, nor the power of the court over the party brought up by it. The term is used in the Constitution, as one which was well understood; and the judiciary act authorizes this court, and all the courts of the United States, and the judges thereof, to issue the writ "for the purpose of inquiring into the cause of commitment." This general reference to a power which we are required to exercise, without any precise definition of that power, imposes on us the necessity of making some inquiries into its use, according to that law which is in a considerable degree incorporated into our own.

The writ of habeas corpus is a high prerogative writ, known to the common law, the great object of which is the liberation of those

88 Only a portion of the opinion of Marshall, C. J., is printed.

It is in the nature

who may be imprisoned without sufficient cause. of a writ of error, to examine the legality of the commitment. The English judges, being originally under the influence of the crown, neglected to issue this writ, where the government entertained suspicions which could not be sustained by evidence; and the writ, when issued, was sometimes disregarded or evaded, and great individual oppression was suffered, in consequence of delays in bringing prisoners to trial. To remedy this evil, the celebrated habeas corpus act of 31 Car. II was enacted, for the purpose of securing the benefits for which the writ was given. This statute may be referred to as describing the cases in which relief is, in England, afforded by this writ to a person detained in custody. It enforces the common law. This statute excepts, from those who are entitled to its benefit, persons committed for felony or treason, plainly expressed in the warrant, as well as persons convicted or in execution. The exception of persons convicted applies particularly to the application now under consideration. The petitioner is detained in prison by virtue of the judgment of a court, which court possesses general and final jurisdiction in criminal cases. Can this judgment be re-examined upon a writ of habeas corpus?

This writ is, as has been said, in the nature of a writ of error, which brings up the body of the prisoner, with the cause of commitment. The court can undoubtedly inquire into the sufficiency of that cause; but if it be the judgment of a court of competent jursdiction, especially a judgment withdrawn by law from the revision of this court, is not that judgment in itself sufficient cause? Can the court, upon this writ, look beyond the judgment, and re-examine the charges on which it was rendered? A judgment, in its nature, concludes the subject on which it is rendered, and pronounces the law of the case. The judgment of a court of record, whose jurisdiction is final, is as conclusive on all the world as the judgment of this court would be. It is as conclusive on this court, as it is on other courts. It puts an end to inquiry concerning the fact, by deciding it. * * * 89

89 The following cases in this collection are cases of habeas corpus: In re Sawyer, 124 U. S. 200, 8 Sup. Ct. 482, 31 L. Ed. 402 (1888); Langenberg v. Decker, 131 Ind. 471, 31 N. E. 190. 16 L. R. A. 108 (1892); Nishimura Ekiu v. United States, 142 U. S. 657. 12 Sup. Ct. 336, 35 L. Ed. 1146 (1892); Gonzales v. Williams, 192 U. S. 1, 24 Sup. Ct. 171, 48 L. Ed. 317 (1903); United States v. Sing Tuck, 194 U. S. 161, 24 Sup. Ct. 621, 48 L. Ed. 917 (1904); United States v. Ju Toy, 198 U. S. 253, 25 Sup. Ct. 644, 49 L. Ed. 1040 (1905); Chin Yow v. United States, 208 U. S. 8, 28 Sup. Ct. 201, 52 L. Ed. 369 (1908).